Evidence Flashcards
Is the Evidence Relevant under FRE 401?
Q: does it make the existence of any fact or consequence more or less probable?
- If NO it is not admissible
- If YES then continue analysis
Is the evidence excludable under FRE 403?
Q: is its probative value substantially outweighed by:
(1) Danger or Prejudice
(2) Volume
(3) Undue delay in trial to introduce evid
(4) Confusion of Issues
(5) Evid may mislead jury
(6) Wasting time/cumulative evidence
(7) Conditional relevancy
- If YES it is excludable
- If NO then continue analysis
Is the evidence relevant BUT specifically excluded by the FRE?
SUBSEQUENT REMEDIAL MEASURES
-excluded to prove Neg or culpable conduct but admissible to show ownership, control, concealment or destruction of evidence. Also it is admissible to rebut a claim that precautionary measures were not feasible and to prove that the opposing party has destroyed evidence.
NY Distinction–in a manufacturing defect case, sub remedial measures are admissible to est defectiveness of product when made
CONTRAST: in a design defect or failure to warn case, post-manufacture modifications admissible only to defeat the manufacturer’s claim that at the time of the manufacture, such modifications were not feasible. Even if the manufacturer concedes feasibility, the evidence of modification is inadmissible.
Is the evidence relevant BUT specifically excluded by the FRE?
OFFERS TO COMPROMISE
Offers to compromise in a civil case excluded to prove L and cant be severed from admission (ex party admits L and the amount of L but offers to settle for a letter amount). There must be a claim and it must be disputed as to validity or amount.
Is the evidence relevant BUT specifically excluded by the FRE?
OFFERS TO PAY FOR MEDICAL/SIMILAR EXPENSES
excluded to prove L and may be severed from an admission
Is the evidence relevant BUT specifically excluded by the FRE?
PLEA NEGOTIATIONS
(ie withdrawn G plea and offers to plead G) excluded in crim case
Is the evidence relevant BUT specifically excluded by the FRE?
LIABILITY INS
excluded to prove fault or ability to pay BUT ADMISSIBLE to prove witness is agent, ownership, control, bias or prejudice
Is the evidence relevant BUT specifically excluded by the FRE?
RAPE SHIELD
exclude evidence of V’s prior sexual conduct EXCEPT to prove that a person other than the D was the source of the semen, injury or other physical evidence.
Also ADMISSIBLE are prior sexual encounters with D to prove consent
NY Distinction: eff 11/1/94 evidence of V’s dress at time of rape inadmissible UNLESS ct finds that it is relevant and admissible in the interests of justice–ct must give its findings of fact essential to the determination.
NY Distinction: a prompt declaration of rape is an exception to the hearsay rule and can be testified to in ct for the truth of the rape (date rape, spousal rape).
If the Evidence is Real (physical objects not assertions made by witness)
1) has it been authenticated?–achieved by direct proof or chain of custody. It can be avoided by stipulation, written request for admission or testimony of a witness with knowledge. Real evidence can also be self-authenticating: some documents are what they purport to be by the proponents, so there is no need for extrinsic evidence of authenticity
- If NO excludable
- If YES does it comply with the BEST EVIDENCE RULE (FRE 1002)?
If real evidence is authenticated does it comply with BEST EVIDENCE RULE?
to prove the terms of a writing (including recordings, photos, x-rays) that is a legally operative or dispositive instrument (ie K or deed) or the knowledge of a witness concerning a fact that results from having read the document, the orig writing must be produced.
Secondary evidence (testimony or copies) are only admissible if the orig is unavailable (lost or destroyed in good faith, in the possession of a third party, in another jurisdiction, not obtainable, or in the possession of an adversary).
NOTE: duplicated (extra copy) are admissible in fed ct, unless (i) the authenticity of the orig is challenged, or (ii) under the circumstances, it would be unfair to admit the duplicate in place of the original (FRE 1003)
Best Evidence Rule does NOT apply when:
(1) the facts to be proved exist independently of any writing
(2) where the writing is collateral to the litigated issue
(3) to summarize voluminous records, or
(4) public records
If TESTIMONIAL evid is offered on direct exam, is the evid HABIT?
Habit is the regular response of an individual (conduct) to a repeated situation, absent deliberation. This evidence is always admissible.
NY Distinction–NY qualifies habit admissability to when the party was in:
(1) complete and exclusive control of the circumstances
(2) the act was deliberate, AND
(3) repetitive
*in NY Neg cases evidence of habitual due care is excluded for the reason that it raises too many collateral issues.
If TESTIMONIAL evid is offered on direct exam, is the evid CHARACTER?
Character evid is only admissible on direct in the following situations:
CIVIL Proceeding–not admissbale except for:
(i) Defamation
(ii) Parent’s character in custody battle
(iii) Mental condition of testator in a will
(iv) Negligent entrustment/Negligent hiring
(v) animal’s vicious propensity
(vi) self defense raised
(vii) where party puts her own character in issue
CRIMINAL Proceeding–prosecutor may introduce evid of D’s character on the direct case in the following situations:
(i) D contends he was not the first aggressor in homicide or assault
(ii) D raises defense of entrapment
(iii) State can show past conduct to prove MIMIC PO (Motive, Intent, knowledge or absence of Mistake, Identity, Common plan or scheme, Preparation, Opportunity).
Methods of proving CHARACTER
(1) Reputation or Opinion–in all cases in which evid of character is admissible, proof may be made by testimony as to reputation or in the form of an opinion. On cross-exam, inquiry is allowable into relevant specific instances of conduct.
(2) Specific Instances of Conduct–in cases in which character or trait of character is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
OPINION Evidence–Lay Opinion
Opinion is an inference or conclusion drawn from facts derived from first-hand knowledge or observation. The facts are the basis for the inference or conclusion drawn.
LAY Opinion–non-expert. can render an opinion as to what they observe w their senses and is within common understanding. Opinion testimony is generally admissible when:
(i) it is rationally based on the perception of the witness AND (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue.
EX:
- re a person’s general appearance
- re person’s emotional state
- re sense recognition
- re speed of car
- re intoxication
- re sanity
- re handwriting
- re voice identification
OPINION Evidence–Expert Opinion
Opinions of Experts Admissible when:
(1) the subject matter is one where the expert’s testimony would assist the trier of fact;
(2) the testimony is based on matters upon which the expert might reasonably rely, and
(3) the expert is qualified on the subject
Opinion on Ultimate Issues: under fed rules an expert may render an opinion as to the ultimatre issue in the case. However, a crim case in which D’s mental state constitutes an element of the crime or defense, an expert may not, under fed rules, state an opinion as to whether the accused did or did not have the mental state in issue.
NY Distinction–the rule supports the ultimate issue of guilt or innocence, therefore an expert can render an opinion of sanity.
5 methods to Impeach a witness–CHARACTER OR CONDUCT OF WITNESS
(1) Character or Conduct of witness as to trait of truthfulness.
- any questions on criminal, viscous or immoral conduct (“bad acts”) is allowed other than asking if the witness was arrested, if it affects character and shows the wintess to be unworthy of belief. However, the examiner is bound to the answer and cannot prove the witness lied except through the introduction of a record of conviction of a felony or a crime involving dishonesty or false statement that is less than 10 yrs old.
-there is a balancing test re the intro of record of a felony convicion not involving dishonesty
TEST: probabitve value substantially outweighed by unfair prejudice
APPLICATION: when D is the witness, exclusion is favored; with any other witness, inclusion is favored.
-Rebuttal of the witness’ character can only be in the form of either reputation or opinion and not address any specific conduct of the witness.
NY Distinction: a rebuttal of the witness may only be called for impeachment pruposes by testifying to bad community reputation for truth, but may not render an opinion as to character or testify to specific examples.
5 methods to Impeach a witness–PRIOR INCONSISTENT STMT
FILL IN
5 methods to Impeach a witness–BIAS
- Evid that a witness is biased or has an interest in the outcome of a suit tends to show the witness has a motive to lie.
- a witness may always be impeached after a proper foundation has been laid by extrinsic evidence of bias or interest. Most cts require person impeaching must ask about the facts impeaching witness on cross-exam. If witness on cross admits the facts claimed to show bias, it is within the judge’s discretion to decide whether extrinsic evidence may be introduced as further proof of bias or interest. Evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.
5 methods to Impeach a witness–PRIOR DEFECTS IN WITNESS’ CAPACITY
no additional notes
5 methods to Impeach a witness–MATERIAL FACTS DIFFERENT FROM WHAT WITNESS SAID
no additional notes
Does the witness on direct/cross have a faulty recollection?
- If NO then witness is competent to testify provided they observed the event, can remember the event, and can testify about it.
- If YES the witness is not competent unless their memory is prompted through either: (1) past recollection recorded OR (2) present recollection refreshed.
Is the evid PRIVILEGED by the existence of one of the following relationships?
(1) Atty/client
(2) Marital
(3) Clergy
(4) MD/Patient
(5) Privilege against self-incrimination
- if YES it is excludable (if real evidence write ans)
- if NO and testimonial evid, then continue…
Is the Evid HEARSAY?
rule excludes as evidence verbal and written statements or non-verbal conduct intended as an assertion that the declarant didn’t make while testifying in the current court proceeding and are being offered in court for the purpose of establishing the truth or falsity of the facts asserted in the out of court statement.
